Environmental Defense Fund v. Tennessee Water Quality Control Bd.
Citation: 14 ELR 20314
660 S.W.2d 776/(Tenn. Ct. App., 04/07/1983)
The court rules that the Tennessee Water Quality Board acted within its powers in granting certification under § 401 of the Federal Water Pollution Control Act for construction of the Columbia Dam on the Duck River even though the Board found the dam would cause periodic violations of the state water quality standards. The court rules that the Board has the discretion to allow insignificant violations of state water quality standards, and that a violation is significant only if it would impair a recognized use of the water. Deferring to the expertise of the Board, the court holds that the Board reasonably concluded, based on the rate and extent of the violations, that no use of the water will be impaired.The court then holds that the Board did not misallocate the burden of proof when it concluded in the absence of sufficient evidence to predict the severity of the violations that certain violations would be insignificant. The court holds that the Board's Antidegradation Statement does not apply to its action, because the Statement was meant to prevent degradation of waters of above-standard quality or of high natural resources value, and the Duck River barely meets standards and is not an outstanding resource. The court concludes that the Board reasonably found that the violation of some water quality criteria, the higher costs of water treatment, and some changes in aquatic biota would not impair uses.
Counsel for Appellants
Frank M. Fry
Burger, Fly & McFarlin
P.O. Box 1647, Murfreesboro TN 37133-1647
James Robertson, William D. Brighton
Wilmer, Cutler & Pickering
1666 K St. NW, Washington DC 20006
Counsel for Appellees
Herbert S. Sanger Jr.; Brent R. Marquard, General Counsel
Tennessee Valley Authority, 400 W. Summit Hill Dr., Knoxville TN 37902
Lee Breckenridge, William Hubbard
Office of the Attorney General
450 James Robertson Pkwy., Nashville TN 37219
TODD, P.J. (M.S.), and LEWIS, J., concur.